1998 WL 34078999 (9th Cir.)

For opinion see 217 F.3d 646

 

Briefs and Other Related Documents

 

United States Court of Appeals, Ninth Circuit.

 

Mario Ernesto NAVAS, A70 189 355, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

 

No. 98-70363.

 

August 6, 1998.

 

Petition for Review of an Order of the Board of Immigration Appeals

 

Brief for Respondent

 

Frank W. Hunger, Assistant Attorney General, Civil Division, Brenda E. Ellison, Senior Litigation Counsel, Mary Jane Candaux, Attorney, Office of Immigration Litigation, Civil Division, Department of Justice, P.O. Box 878, Ben Franklin Station, Washington, D.C. 20044, (202) 616-9303, Attorneys for Respondent.

 

*i TABLE OF CONTENTS

 

STATEMENT OF JURISDICTION ... 1

 

ISSUE PRESENTED ... 3

 

STATEMENT OF THE CASE ... 3

 

I. Course of Proceedings and Disposition Below ... 3

 

II. Statement of the Facts ... 4

 

A. Navas' Written Asylum Application ... 4

 

B. Navas' Testimony ... 5

 

C. The Documentary Evidence ... 6

 

III. The Decision of the Immigration Judge ... 6

 

IV. The Decision of the Board of Immigration Appeals ... 6

 

SUMMARY OF THE ARGUMENT ... 7

 

ARGUMENT ... 7

 

SUBSTANTIAL EVIDENCE SUPPORTS THE BOARD'S DENIAL OF ASYLUM TO NAVAS ... 7

 

I. Statutory Background and Burden of Proof ... 8

 

A. Asylum ... 8

 

B. Withholding of Deportation ... 9

 

II. Standard of Review ... 10

 

III. The Evidence Does Not Compel A Finding That Navas Was Persecuted On Account of A Protected Ground ... 12

 

A. The Record Evidence Does Not Compel the Conclusion That Navas Demonstrated an Objective Basis for His Fear of Persecution ... 12

 

*ii B. The Record Evidence Does Not Compel the Conclusion That Navas Demonstrated A Causal Connection Between the Harm Suffered and a Political Opinion Imputed to Him ... 14

 

C. As Navas did not demonstrate past persecution, it is irrelevant whether the Board considered whether he could relocate in El Salvador ... 16

 

CONCLUSION

 

STATEMENT OF RELATED CASES

 

BRIEF FORMAT CERTIFICATION

 

ADDENDUM

 

CERTIFICATE OF SERVICE

 

*iii TABLE OF AUTHORITIES

 

CASES

 

Abedini v. I.N.S., 971 F.2d 188 (9th Cir. 1992) ... 15

 

Arriaga-Barrientos v. I.N.S., 937 F.2d 411 (9th Cir. 1990) ... 14

 

Aruta v. I.N.S., 80 F.3d 1389 (9th Cir. 1996) ... 10

 

Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) ... 10

 

Diaz-Escobar v. I.N.S., 782 F.2d 1488 (9th Cir. 1986) ... 7

 

Fisher v. I.N.S., 79 F.3d 955 (9th Cir. 1996) ... 11

 

Ghaly v. I.N.S., 58 F.3d 1425 (9th Cir. 1995) ... 10, 11

 

I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987) ... 9, 10

 

I.N.S. v. Elias-Zacarias, 502 U.S. 478 (1992) ... 8, 10, 11, 15

 

I.N.S. v. Stevic, 467 U.S. 407 (1984) ... 9, 10

 

Kalaw v. I.N.S., 133 F.3d 1147 (9th Cir. 1997) ... 2

 

Leon-Barrios v. I.N.S., 116 F.3d 391 (9th Cir. 1997) ... 9

 

Narayan v. I.N.S., 105 F.3d 1335 (9th Cir. 1997) ... 3, passim

 

Prasad v. I.N.S., 47 F.3d 336 (9th Cir. 1995) ... 9, 10, 11, 12

 

Rebollo-Jovel v. I.N.S., 794 F.2d 441 (9th Cir. 1986) ... 7

 

Rodriguez-Rivera v. I.N.S., 848 F.2d 998 (9th Cir. 1988) ... 8, 9

 

*iv Sangha v. I.N.S., 103 F.3d 1482 (9th Cir. 1997) ... 14

 

Singh v. Ilchert, 63 F.3d 1501 (9th Cir. 1995) ... 16, 17

 

STATUTES

 

Illegal Immigration Reform and Immigrant Responsibility Act of 1996:

 

Section 306(c)(1) ... 2

 

Section 307(a) ... 1

 

Section 309(a) ... 2

 

Section 309(c)(4) ... 2

 

Section 309(c)(4)(C) ... 3

 

Immigration and Nationality Act of 1952, as amended:

 

Section 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A) ... 8, 21

 

Section 106(a), 8 U.S.C. § 1105a(a) ... 2

 

Section 208, 8 U.S.C. § 1158 ... 1

 

Section 208(a), 8 U.S.C. § 1158(a) ... 7, 8, 21

 

Section 241(a)(4)(D), 8 U.S.C. § 1251(a)(4)(D) ... 21

 

Section 241(b)(3), 8 U.S.C. § 1251(b)(3) ... 1

 

Section 242, 8 U.S.C. § 1252 ... 2

 

Section 243(h), 8 U.S.C. § 1253(h) ... 1, 7, 9, 21

 

Section 243(h)(1), 8 U.S.C. § 1253(h)(1) ... 21

 

*v REGULATIONS

 

8 C.F.R. § 3.1(b)(2) ... 2

 

8 C.F.R. § 208.3(b) ... 9

 

8 C.F.R. § 208.13 ... 7

 

8 C.F.R. § 208.16(b) ... 10

 

*1 STATEMENT OF JURISDICTION

 

Petitioner Mario Ernesto Navas (Navas), a native and citizen of El Salvador, seeks review of a final order of deportation issued against him by the Board of Immigration Appeals (BIA or Board), denying his applications for asylum and withholding of deportation under sections 208 and 243(h) of the Immigration and Nationality Act (Act or INA), 8 U.S.C. §§ 1158, 1253(h). [FN1] The *2 BIA had jurisdiction to review the decision of the immigration judge denying Navas' application for asylum and withholding of deportation pursuant to 8 C.F.R. § 3.1(b)(2). The Board dismissed Navas' appeal on March 4, 1998. Administrative Record (A.R.) 2. The Board's order is final. See 8 C.F.R. § 3.1(d)(2).

 

    FN1. The statutory provision addressing withholding of deportation was revised by § 307(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996). The current version of the withholding of deportation provision is found at INA § 241(b)(3), 8 U.S.C. § 1251(b)(3). However, the former provision at 8 U.S.C. § 1253(h) applies to Navas' case, because the Immigration and Naturalization Service placed him into deportation proceedings before April 1, 1997, the effective date of the new provision.

 

Navas' deportation proceeding commenced before April 1, 1997, and his final deportation order was issued after October 30, 1997. This Court therefore has jurisdiction to review the Board's final order of deportation pursuant to INA section 106(a), 8 U.S.C. § 1105a(a), as modified by the transitional rules for judicial review in section 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, 3009-626 (Sept. 30, 1996), as amended by Act of Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656. [FN2] See generally Kalaw v. I.N.S., 133 F.3d 1147, 1149-50 (9th Cir. 1997) (discussing jurisdiction to review BIA orders in view of IIRIRA).

 

    FN2. IIRIRA also included a provision repealing INA § 106 and replacing it with another judicial review provision to be codified at 8 U.S.C. § 1252, et seq. The new judicial review section, however, does not apply to this case. See IIRIRA §§ 306(c)(1) and 309(a).

 

Navas filed his petition for review on March 30, 1998, within thirty days of the Board's decision. Therefore, the *3 petition for review was filed timely. See IIRIRA § 309(c)(4)(C); Narayan v. I.N.S., 105 F.3d 1335 (9th Cir. 1997).

 

ISSUE PRESENTED

 

Whether substantial evidence supports the Board's conclusion that the alleged threats to Navas occurred because he witnessed a criminal act, not on account of an imputed political opinion.

 

STATEMENT OF THE CASE

 

I. Course of Proceedings and Disposition Below

 

This is an immigration case in which petitioner Navas seeks review of a final order of the Board denying his applications for asylum and withholding of deportation. In an order issued January 16, 1997, after a hearing at which Navas was represented by counsel, the immigration judge found Navas deportable and ordered him to depart the United States voluntarily by August 15, 1997, or be deported to El Salvador. A.R. 15-18. Navas timely appealed that decision to the Board. A.R. 8-10. The Board dismissed the appeal on March 4, 1998, affirming the immigration judge's decision and finding that Navas had failed to demonstrate that he was persecuted or that he had a well-founded fear of persecution in El Salvador. A.R. 2-3. The Board granted Navas thirty days from the date of its decision to depart the United States voluntarily. A.R. 5. The instant petition for review followed.

 

*4 II. Statement of the Facts

 

Petitioner Navas is a native and citizen of El Salvador. Id. In support of his asylum application, Navas submitted a written application and supplemental documentary evidence, and testified at the asylum hearing. See A.R. 2, fn. 1; 72-97.

 

A. Navas' Written Asylum Application

 

In his written asylum application, Navas stated that he was seeking asylum because he saw three army members leaving his aunt's house in June, 1992. A.R. 75. When the three men saw Navas, they fired their guns at him, but he fled and escaped. [FN3] Id. The following day, two men appeared at Navas' house looking for him. Id. When his mother did not give the men information on Navas' whereabouts, the men hit her. Id. Navas believes he would be killed by members of the military if he returned to El Salvador because he "was a wi[t]ness of the crime they did with [his] aunt." Id.

 

    FN3. Although it does not appear in Navas' testimony or written application, apparently Navas' aunt was murdered that same day. See A.R. 16 (Immigration Judge Decision) ("[Navas] left his country, for fear that these three men ... would kill him because they believe that he would be able to identify them as the men that killed his aunt.").

 

Navas indicated that neither he nor any family member belonged to or associated with any organization or group in El Salvador. A.R. 76. Further, neither he nor any family member *5 was ever mistreated, threatened, arrested, detained, or interrogated by the authorities in El Salvador. Id.

 

B. Navas' Testimony

 

Navas testified that he recognized the men he saw leaving his aunt's house as army members stationed in his town because he lived in "a very small town [where] everybody knows each other." A.R. 25. The men chased and shot at Navas. A.R. 25. The following day the men went to Navas' home, beat his mother, and threatened to kill both her and Navas if Navas didn't leave El Salvador. A.R. 25-26.

 

Navas stated that he belonged to "the democratic party" in his town. A.R. 26- 27. Along with other party members, Navas "spread[] propaganda around the town." A.R. 27-28. Navas believes the three men he saw leaving his aunt's house know him and saw him spreading political propaganda. A.R. 28. The three men still live in the town and are now part of the national civil police. A.R. 26. Finally, the first husband of Navas' aunt was an FMLN rebel who was killed in 1988 "because he was a member opposing the military." A.R. 27.

 

On cross examination, Navas admitted that he told an INS asylum officer in a sworn interview that he did not belong to any political organizations in El Salvador. A.R. 33-34. He explained that he "was afraid that if [he] said yes, it could have affected [him]." A.R. 34.

 

*6 C. The Documentary Evidence

 

In support of his asylum application, Navas submitted (1) his birth certificate (A.R. 43-45), (2) Americas Watch Reports on El Salvador for 1992 (A.R. 46-55), 1993 (A.R. 56-63), 1995 (A.R. 64-67), and 1996 (A.R. 68-71), and (3) a death certificate of Victoria Manuela Navas Guerra (A.R. 72-73).

 

III. The Decision of the Immigration Judge

 

The immigration judge found that the incident Navas described "probably happened." A.R. 17. Nonetheless, she denied the asylum request because Navas' status as a witness to a murder, a criminal act, was not a ground for asylum. Id. She also found that, even if witnessing a crime were a protected ground, Navas could avoid any further threat from the three men by returning to a different city or town in El Salvador. Id. The immigration judge then granted Navas an extended voluntary departure period.

 

IV. The Decision of the Board of Immigration Appeals

 

The Board affirmed the immigration judge's decision, finding that Navas had neither established past persecution nor a well-founded fear of persecution. A.R. 2-3. The Board stated that "the alleged killers' interest in [Navas] relates to his ability to identify them, not to a desire to harm him on account of one of the enumerated grounds of persecution. There is no evidence to confirm, as alleged on appeal, that the murderers would seek *7 to harm [Navas] on account of an imputed political opinion." A.R. 3. Because Navas did not satisfy the lower burden of proof required for asylum, the Board also denied his request for withholding of deportation. Id. Finally, the Board granted Navas thirty days from the date of its decision to depart the United States. Id.

 

SUMMARY OF THE ARGUMENT

 

Substantial evidence supports the Board's finding that the alleged threats to Navas occurred because he witnessed a criminal act, not on account of an imputed political opinion, and thus, Navas failed to establish that he was persecuted or that he has a well-founded fear of persecution on account of his political opinion or an imputed political opinion.

 

ARGUMENT

 

SUBSTANTIAL EVIDENCE SUPPORTS THE BOARD'S DENIAL OF ASYLUM TO NAVAS

 

Navas seeks review of the Board's denial of his applications for asylum under section 208(a) of the Act, 8 U.S.C. § 1158(a), and withholding of deportation under section 243(h) of the Act, 8 U.S.C. § 1253(h). It was Navas' burden to demonstrate statutory eligibility for both forms of relief. 8 C.F.R. § 208.13; Rebollo-Jovel v. I.N.S., 794 F.2d 441, 448 (9th Cir. 1986); Diaz-Escobar v. I.N.S., 782 F.2d 1488, 1492 (9th Cir. 1986). Here, the Board concluded that Navas did not meet his burden of proof for either form of relief. The issue before this Court is *8 whether Navas has presented evidence that compels this Court to conclude that the Board incorrectly denied his asylum application. He did not.

 

I. Statutory Background and Burden of Proof

 

Asylum and withholding of deportation are distinct but related forms of relief available to an alien who has been persecuted or who seeks protection from future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

 

A. Asylum

 

INA section 208(a), 8 U.S.C. § 1158(a), permits the Attorney General, in the exercise of her discretion, to grant asylum to an alien who is a refugee within the meaning of INA section 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The latter section provides that an alien who is outside the country of his or her nationality "and who is unable or unwilling to return to ... that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion," is a refugee. In order for an alien to be granted asylum, he or she must demonstrate (1) statutory eligibility by qualifying as a refugee, and (2) circumstances which lead the Attorney General to exercise discretion in his or her favor. *9Rodriguez-Rivera v. I.N.S., 848 F.2d 998, 1001 (9th Cir. 1988). The alien bears the burden of proof at each step. Id.

 

To establish statutory eligibility, an alien must show either past persecution or a well-founded fear of future persecution. Well-founded fear requires both an authentic subjective fear and an objective basis for that fear. I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987); Rodriguez-Rivera, 848 F.2d at 1002. "An asylum applicant's candid, credible and sincere testimony demonstrating a genuine fear of persecution satisfies the subjective component of the well-founded fear standard." Leon-Barrios v. I.N.S., 116 F.3d 391, 393 (9th Cir. 1997) (quoting Berroteran-Melendez v. I.N.S., 955 F.2d 1251, 1256 (9th Cir. 1992)). The objective component "requires a showing by credible, direct, and specific evidence of facts supporting a reasonable fear of persecution on the relevant ground." Prasad v. I.N.S., 47 F.3d 336, 338 (9th Cir. 1995).

 

B. Withholding of Deportation

 

A request for asylum in deportation proceedings is also considered a request for withholding of deportation. 8 C.F.R. § 208.3(b); I.N.S. v. Stevic, 467 U.S. 407, 420 n.13 (1984). Section 243(h) of the Act, 8 U.S.C. § 1253(h), provides that "[t]he Attorney General shall not deport or return any alien [with certain exceptions] to a country if the Attorney General determines that such alien's life or freedom would be threatened *10 in such country on account of race, religion, nationality, membership in a particular social group, or political opinion."

 

The alien bears the burden of showing that it is "more likely than not" that he or she would be persecuted on account of one of these grounds if he or she were to return to the country in question. Stevic, 467 U.S. at 424; 8 C.F.R. § 208.16(b). In other words, the alien must show a "clear probability of persecution." Id. This is a more difficult standard to meet than the "well-founded fear" standard for asylum. Cardoza-Fonseca, 480 U.S. at 449; Prasad, 47 F.3d at 340. Thus, if an alien does not meet the less stringent asylum eligibility standard, it follows that he or she will be unable to meet the more stringent withholding standard. Prasad, 47 F.3d at 340.

 

II. Standard of Review

 

The Board's factual determination that a petitioner failed to demonstrate asylum eligibility is reviewed under the substantial evidence standard. Elias-Zacarias, 502 U.S. at 481; Aruta v. I.N.S., 80 F.3d 1389, 1393 (9th Cir. 1996); Ghaly v. I.N.S., 58 F.3d 1425, 1431 (9th Cir. 1995); Prasad, 47 F.3d at 338. The Court reviews the Board's legal interpretations of the INA de novo, but such interpretations generally are entitled to deference under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Thus, the standard of review for the issue in this case -- the Board's determination that Navas *11 did not establish eligibility for asylum because he did not show past persecution or a well-founded fear of persecution on account of a protected ground -- is the substantial evidence standard. See Fisher v. I.N.S., 79 F.3d 955, 961 (9th Cir. 1996) (en banc).

 

The Supreme Court has established that the substantial evidence standard is extremely deferential, requiring a reviewing court to uphold the Board's decision unless the alien demonstrates "that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Elias-Zacarias, 502 U.S. at 483. To reverse the Board, a reviewing court must find that the record "not only supports [the contrary conclusion], but compels it." Id. at 480 n.1; Prasad, 47 F.3d at 338.

 

Where, as here, the Board reviews the record de novo, this Court reviews only the Board's decision. Ghaly, 58 F.3d at 1430. Furthermore, this Court has said that "[i]n making essentially factual determinations such as whether an alien has a well-founded fear of persecution if returned to his homeland, the Board cannot be expected to explain how much weight it places on every piece of relevant evidence. Nor need the Board refer to each exhibit. All that [the Court] require[s] is that the Board provide a comprehensible reason for its decision sufficient for [the Court] to conduct [its] review and to be assured that the petitioner's case received individualized attention." Id. at *12 1430 (citing Castillo v. I.N.S., 951 F.2d 1117 (9th Cir. 1991)). As revealed by the Board's decision here, this the Board has done.

 

III. The Evidence Does Not Compel A Finding That Navas Was Persecuted On Account of A Protected Ground.

 

The Board found that any harm Navas faced in El Salvador occurred because he witnessed a criminal act; not on account of an immutable characteristic or belief within the scope of sections 101(a)(42)(A) or 243(h) of the Act. A.R. 3. In contrast, Navas asserts that he was persecuted on account of a political opinion imputed to him by the three military officers he saw leaving his murdered aunt's house. Petitioner's Brief (Pet. Br.) at 5. However, the evidence of record does not compel the conclusion that Navas was persecuted on account of an imputed political opinion. Indeed, substantial evidence supports the Board's conclusion that the threats occurred because Navas witnessed a crime.

 

A. The Record Evidence Does Not Compel the Conclusion That Navas Demonstrated an Objective Basis for His Fear of Persecution.

 

Navas' testimony and evidence were wholly inadequate to demonstrate an objective basis for his fear of persecution. Although an applicant's testimony alone may suffice to carry the applicant's burden, that testimony must be credible, direct, and specific. Prasad, 47 F.3d at 338. Here, Navas' testimony was extremely brief and woefully lacking in detail. A.R. 25-28. For *13 example, Navas' entire testimony concerning his alleged political activity was that he was a member of "the democratic party[,]" that the group "spread[] propaganda around the town[,]" and that the three alleged killers knew him in that role. A.R. 27-28. He did not describe the group's goals or objectives, his motives for joining the group, or the dates he joined and spread propaganda.

 

Furthermore, the record does not support Navas' claim that he was threatened because he "was known by the persecutors to be part of a family involved in the anti-government movement." Pet. Br. at 5. According to Navas' testimony, the sole family member involved in political activities was his aunt's first husband, an FMLN member killed in 1988. If the military were inclined to threaten Navas on account of the anti-government views of his family, it is likely that he or other family members would have had problems between 1988 and 1992, when he left El Salvador. According to Navas' written asylum application, they did not. A.R. 76. Furthermore, there is no evidence that Navas' aunt held anti-government views or that her 1992 murder was connected to the 1988 death of her first husband. The commission of a murder by members of the military is not necessarily a politically motivated act, and the fact that the victim's first husband was an FMLN rebel does not make it so.

 

*14 B. The Record Evidence Does Not Compel the Conclusion That Navas Demonstrated A Causal Connection Between the Harm Suffered and a Political Opinion Imputed to Him.

 

An asylum applicant must, by direct or circumstantial evidence, prove a causal connection between the harm suffered and the applicant's political or imputed political opinion. Sangha v. I.N.S., 103 F.3d 1482, 1486 (9th Cir. 1997). That is, "[t]he petitioner must prove something more than violence plus disparity of views." Id. Furthermore, "an asylum seeker claiming to be a victim of persecution on account of his or her political opinion must establish ... four facts: (a) that he or she has been a victim of persecution; (b) that he or she holds a political opinion; (c) that this political opinion is known to or imputed by the persecutors; and (d) the ensuing persecution of the victim has been or will be on account of this opinion." Id. at 1487. Where, as here, the applicant asserts that he or she was persecuted on account of an imputed political opinion,

 

the focus of inquiry [concerning political opinion] turns away from the views of the victim to the views of the persecutor. [The Court] consider[s] ... not the persecutor's own political opinions, but rather the political views the persecutor rightly or in error attributes to his [or her] victims. If the persecutor attributed a political opinion to the victim, and acted upon the attribution, this imputed view becomes the applicant's political opinion as required under the Act. To establish an imputed political opinion, the applicant must show that his persecutors actually imputed a political opinion to him.

 

Id. at 1489 (citing Canas-Segovia v. I.N.S., 970 F.2d 599, 601-02 (9th Cir. 1992); *15Arriaga-Barrientos v. I.N.S., 937 F.2d 411, 414 (9th Cir. 1990); Abedini v. I.N.S., 971 F.2d 188, 192 (9th Cir. 1992).

 

The problems Navas experienced in El Salvador occurred immediately after Navas saw three soldiers leaving his murdered aunt's house. The men immediately chased and fired shots at him. The next day, his mother was beaten and threatened that both she and Navas would be killed if Navas did not leave El Salvador. Navas apparently lived unharmed in El Saldador up to that point. He offered no evidence that he was threatened or harmed because of his membership in or activities with the "democratic party." To the contrary, Navas stated in his written asylum application that neither he nor any family member was threatened or mistreated by the authorities in El Salvador. A.R. 76. Thus, a reasonable factfinder would conclude that the threats to Navas occurred because he witnessed the three soldiers leaving a crime scene.

 

In sum, substantial evidence supports the Board's conclusion that the alleged threats to Navas occurred because he witnessed a criminal act. It is utterly reasonable to conclude that the perpetrators of a criminal act would threaten a potential witness who could identify them, and Navas has presented no evidence that compels a contrary conclusion. The Court, to reverse the Board, must find that the record "not only supports [the contrary conclusion], but compels it." *16Elias-Zacharias, 502 U.S. at 480 n.1. The evidence here does not compel the conclusion that the alleged threats occurred on account of a political opinion imputed to Navas.

 

C. As Navas did not demonstrate past persecution, it is irrelevant whether the Board considered whether he could relocate in El Salvador.

 

Navas contends that he established past persecution and challenges the immigration judge's finding that he could safely reside in another town or village. Pet. Br. at 10. However, because the Court here reviews solely the Board's decision, the immigration judge's comments about internal relocation are irrelevant. The Board's decision is based solely on its finding that the harm Navas suffered occurred because of Navas' ability to identify the murderers rather than on account of his political opinion. A.R. 2-3. Because the Board's decision was unrelated to Navas' ability to relocate within El Salvador, Navas' contentions on that point are baseless.

 

Furthermore, the Board found that Navas did not suffer past persecution. A.R. 2 ("We also conclude that [Navas] has not shown past persecution sufficient to warrant a grant of asylum."). As such, had the Board done so, it would have been proper for it to consider whether Navas could safely relocate in El Salvador. See Singh v. Ilchert, 63 F.3d 1501, 1511 (9th Cir. 1995) ("the reasonableness of an applicant's ability to relocate in his or her home country may be considered in the Attorney *17 General's discretion in granting or denying asylum as a form of relief"). It is only after a finding of past persecution that the Board may not require an applicant to establish that he or she could not safely relocate within the home country. Id. at 1510 ("once the applicant has established that he experienced persecution in the past ... [t]here is no burden on the applicant to show that his past experience reflected conditions nationwide" (emphasis added)). Because the Board found no past persecution here, it would have been proper to consider whether Navas had established country-wide persecution.

 

CONCLUSION

 

For the foregoing reasons, this Court should uphold the order of deportation issued by the Board of Immigration Appeals and deny the petition for review.

 

Appendix not available.